Legislation on Use of Water in Agriculture: Brazil

I. Background

In January 2013, Brazil implemented its new National Irrigation Policy, which provides, among other things, that public and private irrigation projects may receive tax incentives, with priority given to areas with low indicators of social and economic development. Farmers who practice irrigated agriculture may have access to rural credit lines for the purchase of irrigation equipment and rural insurance.[1]

II. Legal Framework

The National Irrigation Policy was implemented through Law No. 12,787 of January 11, 2013, which revoked the previous irrigation policy enacted in 1979 through Law No, 6,662 of June 15, 1979.[2]

A. Definitions

Law No. 12,787 defines several concepts, including that of a “farmer irrigator,” who is an individual or entity that practices irrigated agriculture, and whose operations may be classified as family-based, small, medium, or large, as defined by regulation.[3] A “family-based irrigator farmer” is defined as an individual who can be classified as a family farmer under Law 11,326, of July 24, 2006,[4] practicing irrigated agriculture.[5] “Irrigated agriculture” is an economic activity that explores agricultural crops, as well as related farming and cattle-raising activities that use techniques of irrigation or drainage.[6]

B. Principles

Brazil’s irrigation policy is governed by the following principles:

i) sustainable use and management of land and water resources for irrigation;

ii) integration with specific policies on water, environment, energy, environmental sanitation, rural credit and insurance and their respective plans, with priority given to projects whose works allow multiple uses of water resources;

iii) the linking of the actions concerning irrigation in different instances and levels of government and between them and the actions of the private sector;

iv) democratic and participatory management of public irrigation projects with irrigation infrastructure in common use, through mechanisms to be defined by regulation;

E. Water Rights

1. Water Code

For purposes of the Water Code (Código de Águas), a spring (nascente) is defined as waters that emerge naturally or by human industry, and run within one particular property, and even go through it, when those waters have not been abandoned by the owner.[14]

The owner of a property where any spring is located cannot impede the natural course of water to lower properties once the owner’s water consumption needs have been satisfied.[15] If a spring emerges in a gap that divides two properties, it belongs to both properties.[16]

According to the norms of legal drainage servitude (normas da servidão legal de escoamento), the owners of lower-lying properties are compelled to receive water from artificial sources (nascentes artificiais) provided that they receive compensation.[17] This compensation, however, must take into account the value of any benefit that can be derived from supplying such water to the properties.[18]

The owner of a spring cannot alter its course when the spring supplies water to a population.[19] Spring water is determined by the point at which it begins to run upon the ground and not the vein that feeds it underground.[20]

The owner of any land may take possession of water by means of wells and pools that exist beneath the surface of his own property as long as doing so does not harm the water’s existing use, or cause such water to drift or deviate from its natural course if it is public water, common water of public use, or water of private use.[21] If the use of groundwater impairs or diminishes public water, common water of public use, or water of private use, the competent authority may suspend its exploitation.[22]

The owner of a property may not open a well that is adjacent to a neighboring property without observing the necessary distances or taking the required precautions so that the neighbor suffers no harm.[23] Construction capable of polluting or rendering useless for common use the water from a well or spring of another that predated the construction is expressly prohibited.[24] Anyone who violates this provision is obligated to demolish any construction and is liable for losses and damage caused.[25]

2. Civil Code

The owner of a property has the right to build dams, reservoirs, or other works for retaining water on his property. However, if the retained water invades the property of another person, the owner of the invaded property must be compensated for the damage suffered, less the value of the benefit obtained, if any.[26]

Any person can build channels through third-party properties to receive water to which they are entitled and that is an indispensable necessity of life, provided that the owners are compensated and that it does not cause considerable damage to agriculture and industry, as well as to the flow of accumulated water or the drainage of the land.[27]

The harmed owner is also entitled to recover future damages caused by infiltration or irruption of water, as well as the deterioration of works designed to channel them.[28] The aggrieved party may require that the pipeline that runs through built areas, courtyards, gardens, or backyards be constructed underground.[29] The aqueduct must be built in a way that causes the least harm to the owners of neighboring properties, and at the expense of its owner, who is also responsible for its maintenance.[30]

F. Government Authorities

In 2011, the government created the National Irrigation Secretariat (Secretaria Nacional de Irrigação – SENIR) for the main purpose of setting up a management system for irrigated agriculture, establishing the various agencies that interact with the industry, supporting the private sector, and optimizing public areas as development tools for disadvantaged regions. SENIR also aims to promote irrigation as an instrument for efficient agricultural production and eradication of poverty by creating jobs and income.[31]

1. SENIR

SENIR is subordinated to the Ministry of National Integration (Ministério da Integração Nacional) and is divided into two sections: the Department of Public Irrigation and the Department of Irrigation Policy.[32]

SENIR is in charge, among other things, of

promoting the creation, implementation, monitoring, and evaluation of the National Irrigation Policy and its instruments,
which are integrated with the National Policy for Regional Development and other related policies;

promoting the institutional participation of the Ministry of National Integration in instances representing the development of irrigated agriculture;

promoting the business of irrigated agriculture;

promoting the implementation of irrigation projects and agricultural drainage;

promoting and regulating initiatives for the implementation, operation, and maintenance of public works related to irrigation projects; and

supporting and promoting actions aimed at the administrative and operational autonomy of users of irrigation projects.[33]

2. Department of Public Irrigation

The Department of Public Irrigation is responsible for

promoting instruments to support public irrigation perimeters;

implementing activities that promote the coordination and integration of activities with the various organs of the federal, state, and municipal governments for the strengthening of public irrigation;

designing, developing, promoting, and supporting the implementation of irrigation projects;

monitoring, supervising, and inspecting the implementation of actions aimed at the use of water resources and land, together with the other organs of the Ministry of National Integration;

overseeing the implementation of public actions of irrigation and agricultural drainage;

guiding the development of standards and technical manuals aimed at standardizing procedures for public irrigation projects;

supporting the operation, maintenance, and restoration of infrastructure works of irrigation projects;

developing and implement training programs for staff regarding the management of public irrigation projects; and

developing tools for the economic and environmental sustainability of public irrigation projects.[34]

3. Department of Irrigation Policy

The responsibilities of the Department of Irrigation Policy include

leading the process of formulating the National Irrigation Policy and its instruments, which are integrated with the National Policy for Regional Development and other related policies;

evaluating the performance of the National Irrigation Policy;

coordinating the formulation of regional plans and programs for the development of irrigated agriculture;

coordinating the computerized system for monitoring and evaluating the implementation of regional irrigation plans;

establishing the guidelines for the preparation and management of state development plans of irrigated agriculture;

promoting studies, research, and dissemination of technologies for the development of irrigated agriculture;

coordinating, promoting, and reconciling studies for the formulation and implementation of a National Irrigation Policy integrated with regional development;

coordinating, integrating, and reconciling programs and activities of SENIR with agencies and entities of the Ministry of National Integration and with other federal, state, and municipal agencies, and civil society for the strengthening of irrigated agriculture; and

promoting the optimization of the productivity chain in irrigated agriculture with the use of financing, dissemination of management practices, and implementation of certifications, among other things.[35]

G. Licensing

The implementation of an irrigation project depends upon the issuance of an environmental license whenever such license is required by a specific federal, state, municipal, or district law.[36]

When declared by the federal government as essential for social and economic development, the infrastructure works of irrigation projects, including the obstruction of watercourses that cause intervention or removal of vegetation in an area of permanent preservation, may be considered of public utility for the purposes of environmental licensing.[37]

The use of water resources for irrigation projects depends on the prior approval of the right to use water resources by the appropriate federal, state, or district entity.[38] The institutions participating in the national system of rural credit mentioned in Law No. 4,829 of November 5, 1965, may only finance the implementation, expansion, and payment of irrigation projects that have been approved to use water resources.[39]

[10] According to article 6 of Law No. 12,787, the irrigation plans aim to guide the planning and implementation of the National Irrigation Policy, in accordance with the Water Resources Plans.

[11] Article 7 of Law No. 12,787 determines that public irrigation projects must be planned and implemented in accordance with the respective irrigation plans.

[12] Pursuant to article 8 of Law No. 12,787, the National Information System on Irrigation was established for the collection, processing, storage, and retrieval of information related to irrigated agriculture.